March 2010

On March 12th, the Supreme Court of North Carolina reversed a decision by the Court of Appeals on the hot button North Carolina workers’ compensation case of Robert Baxter vs. Denny Nicholson, Inc.

The Background

Truck driver Robert Baxter worked for Denny Nicholson. After an injury at work, he filed for workers’ compensation. A dispute arose. Thus, in February 2007, the matter came before the North Carolina Industrial Commission (NCIC), which voted 2-to-1 in favor of the plaintiff. Baxter was awarded $359 a week in North Carolina workers’ compensation payments along with fees for his attorney’s costs and a 10% penalty. However, after the NCIC signed the agreement — and BEFORE it could be filed — then-Governor Mike Easley replaced NCIC Commissioner Thomas Bolch with a new person, Danny McDonald.

Following this power shift at the NCIC, the defendants in this North Carolina workers’ compensation case appealed that, because Bolch was not actually in office when the workers’ comp award was filed, the decision should be invalidated. The Court of Appeals agreed with the defendant’s arguments, voided the award to Baxter, and called for a rehearing by the NCIC.

Baxter appealed this decision to the Supreme Court, which found that Bolch’s powers to adjudicate this North Carolina workers’ compensation case were valid at the time, despite the fact that he was ultimately replaced. An attorney for the plaintiff pointed to a 1918 court case, which discussed how important it is to prevent voiding decisions that are made during successions to avoid undue disruption to the court process.

A Fascinating Case, But How Does It Apply to You?

All of this theory about North Carolina workers’ compensation law aside, many people out there have practical questions about how to handle insurance companies and issues with benefits. Rather than struggling on your own to plot a strategy, it may behoove you to connect ASAP with a qualified and credentialed North Carolina workers’ compensation attorney for a free and candid and confidential consultation.

Last year, an explosion at a Garner, NC Slim Jim plant killed 3 and injured many more. The slew of North Carolina workers’ compensation suits that followed in the disaster’s wake created a bureaucratic maze that the legal system is still trying to untangle.

A similar situation may be unfolding in Connecticut, following a February 7th explosion in the town of Middletown. In that case, 6 people died, and 26 more were injured after a welder accidentally set fire to a gas line. The enormous explosion was felt 30 miles away.

Already, plaintiffs seem to coalescing around a major and complicated workers’ compensation action. Diverse injuries abound. Some workers allegedly suffered posttraumatic stress syndrome from the blast. Others endured physical injuries, such as burns and lacerations. Still others died (their spouses are gearing up to take legal action). On top of that, three separate defendants have (thusfar) been mentioned in the suits: Keystone Construction, Ducci Electrical and O&G Industries.

Sources close to the case believe that the Connecticut workers’ compensation system may try to consolidate the claims — perhaps by holding them in front of a single judge, so that a unifying logic can underpin the compensation arrangements worked out.

Filing a North Carolina workers’ compensation claim stemming from a catastrophic incident (like the Slim Jim plant or the Connecticut plant explosions) can be quite complicated and confusing. To that end, if you or a friend or family member has been injured at work — whether catastrophically injured or hurt in a more “mundane” fashion (for instance, by a repetitive stress injury brought about by too much typing), consider connecting today with a qualified and well credentialed North Carolina workers’ compensation attorney.

According to allegations, three individuals – Dr. Jacob Solomon, a chiropractor named Darwin Minnis, and a biller named Gary Strauss — collaborated from 2004 to 2007 to falsely bill over a million dollars worth of claims at a West Chicago doctor’s office. Strauss and Solomon have been slapped with one count of healthcare fraud. Minnis, who owned and ran the Maywood Spine and Joint Rehabilitation Center, faces 18 separate counts of fraud. The three inflated claims for insurance payments and workers’ compensation. They are due to be arraigned in federal court.

Many North Carolina workers’ compensation cases “rhyme” with this Chicago case. Often, one (or a handful) of individuals collaborate over a long period of time to slowly but surely bilk the workers’ comp system. In the short-term, the amount of money stolen is usually not enough to send up red flags. But over the long-term, this money can add up to something substantial. (This blog reported only few months ago about a local woman who netted tens of thousands of dollars before being busted for North Carolina workers’ compensation fraud.)

How do these fraud cases debilitate the system?

• First of all, any time someone drains money from the system, that shortfall must be made up through higher premiums, poorer care, and thinner benefits. • Second, North Carolina workers’ compensation fraud creates an atmosphere of distrust. If doctors, insurers, employers, and employees cannot count on the system to be fairly run, they may choose to go around it or choose to ignore other pertinent and important rules of protocol. • Finally, fraud cases – whether perpetrated by employers, insurers, or employees – create pressure on the parties that payout North Carolina workers’ compensation benefits to vet claimants more closely. Unfortunately, this enhanced vetting often snares innocent parties. For instance, someone who may have legitimately hurt his back in a work related lifting accident may come under close scrutiny by his insurance company. Many a legitimate claim has been denied because of this kind of irrationally strict vetting.

If you or a loved one has been battling over benefits, it is a good idea to speak with a knowledgeable North Carolina workers’ compensation lawyer as soon as possible. Good, strategic legal advice can help you compel an insurer to pay out a full claim and can end annoying and potentially illegal harassment. The more knowledgeable you are about your rights under the system, the easier time you will have of collecting benefits owed and recuperating from your injuries.

High profile North Carolina workers’ compensation experts have been vigorously debating last week’s settlement arrangement regarding compensation for 10,000+ plaintiffs who were exposed to toxic contaminants while cleaning up the rubble at the World Trade Center subsequent to the September 11, 2001 attacks.

According to the New York Times, US District Court Judge Alvin Hellerstein met with lawyers for the city and for the plaintiffs last week to go over the terms of the payout. Assuming 95% of the plaintiffs sign on to the agreement, the settlement will go forward. If only 95% agree, the settlement pot will be $575 million. If 100% of claimants agree, the pot will be raised to $657.5 million.

The New York Times quoted NYC Mayor Bloomberg saying that the arrangement was “a fair and reasonable resolution to a complex set of circumstances.” Both city lawyers and lawyers for the plaintiffs seem pleased by the arrangement. Under the terms, a special claims administrator will evaluate plaintiff claims, determine whether specific plaintiffs can participate in the compensation, and allot moneys to be paid out. Some people will likely be awarded only a few thousands of dollars. Others may qualify for over a million dollars.

Many plaintiffs fear that they might develop cancer or another chronic condition that might not manifest for a while due to their exposure, so the settlement stipulates that a special fund of over $23 million will be set aside to pay for their insurance policy costs.

The legal battle over how and whether to compensate victims who got exposed to chemical contaminants, particulate debris, and other hazards at the World Trade Center cleanup site has taken years to resolve. According to the NY Times, the battle cost the city over $200 million in legal fees.

A claims administrator is scheduled to start hearing cases in the middle of May. He or she will look at factors such as the severity of illness/injury suffered, whether the patient had any pre-existing conditions prior to working at Ground Zero, how long it took the patient to develop/report/diagnose his or her illness, and whether the patient has a history of smoking.

Judge Hellerstein also made an unusual decision to have “fairness hearings” about the reasonability of the settlement – fairness hearings are usually only held in class action lawsuits.

North Carolina Workers’ Compensation policy wonks have been blogging about this decision since it came down last week. On the one hand, the settlement does unclog the court system, and it provides a measure of significant recompense to injured victims. It also appears to be relatively balanced, and the extra measures to prevent fraud make a lot of sense, especially in light of the legal brouhaha over the September 11 Victim Compensation Fund.

That being said, the settlement is far from perfect, according to numerous North Carolina workers’ compensation experts. It took way too long to resolve this issue. One initial claimant actually died while waiting for the case to resolve, for instance. And the case consumed fantastic amounts of media oxygen and court time.

What should you do if you or a family member is struggling with a compensation case?

Rather than “going it alone,” connect with a qualified North Carolina workers’ compensation attorney to discuss potential remedies. The logistics regarding even simple worker claims can get extraordinarily complex, and small clerical errors can result in major problems with collecting benefits down the line.

According to local station WECT (based out of Wilmington, North Carolina), almost 100 people who ordinarily collect North Carolina workers’ compensation and unemployment benefits did not get them this week due to a computer glitch. Officials believe that the problem can be traced back to an order of President Obama himself. In retooling a piece of legislation called the Emergency Unemployment Compensation Act, President extended a deadline. This indirectly resulted in a short-term glitch in the North Carolina unemployment compensation system. Some state bank accounts went temporarily empty due to the delay caused by the transfer.

WECT quoted an unemployed man named John Crawford: “I have been hungry many nights…I have been lying in my bed, crying many nights.”

Officials at the North Carolina Employment Commission have been working double time to see that everyone who is owed North Carolina workers’ compensation and unemployment claims will get their paychecks. The disbursal is being prioritized, and a manager for the NCIC (per WECT) said: “once we get it processed, and we get it cleared up, within 72 hours of us getting it fixed they should have their money.”

Temporary computer glitches and shortfalls impact North Carolina workers’ compensation claimants differently. For people living paycheck to paycheck, shortfalls can devastate and lead to an almost Rube-Goldberg-esque cascade of financial problems. For other people, who have more savings and a bigger safety net, a payment delay might not much, if anything at all.

If you or a family member has been struggling with a North Carolina workers’ compensation issue – be it a computer glitch, a dispute with your employer, a frustrating series of negotiations with your insurance company, or a feeling of overwhelm from dealing with the mountains of paperwork you must file with the NCIC – a solid North Carolina workers’ compensation attorney may be able to give you good guidance.

The North Carolina Industrial Commission established a number of findings of fact that neither plaintiff nor defendant challenged. The employee in question (Hallman) was a practicing dentist who developed a crushing depression in 1996 and had to stop working. Seven years later, in March 2003, the North Carolina Department of Corrections hired him to practice dentistry. Hallman accepted this position, because doing so did not threaten to undermine his Social Security disability benefits.

Things were looking up for the dentist and until May of that year, when Hallman hurt his back while playing sports with his son. Several months later, he had back surgery to fix his basketball injury. In September 2003, he went back to work. But he did not last long. Due to continued pain, his doctor told him to stop working. In December 2003, Hallman tried again to go back to work. By the following month, he had regained almost complete use of his back. But on January 26, 2004, he slipped on a patch of ice getting out of his car and hurt his back again. On top of that, Hallman has incipient Parkinson’s disease.

The trials and tribulations of this employee seeking North Carolina workers’ compensation benefits illustrates just how complex and multi-faceted the process can be. Consider all of the employee’s conditions – the depression, the Parkinson’s, the two back injuries, and the surgery – along with how and when they occurred within the context of his employment. Both the appellate court and the North Carolina Industrial Commission were somewhat stumped about how to handle his situation. Was Hallman totally or partially disabled? What benefits should he be entitled to, and until when should he be entitled to them?

What’s interesting is that this case is rather typical for North Carolina workers’ compensation cases. Usually, it’s not just that an employee gets injured once and quickly recovers and goes back to work. Typically, an employee suffers a string of minor (and major) physical insults that collaborate to cause a constellation of health problems that impede if not totally interrupt the employee’s ability to do his or her job.

All this is to say that if you or a loved one has been struggling with a North Carolina workers’ compensation case, it’s almost certainly in your best interest to connect with a knowledgeable state workers’ comp attorney to go over your options.

Pundits and policymakers who debate North Carolina workers’ compensation are abuzz about the latest news out of Canada’s Supreme Court regarding a 16-year old workers’ compensation dispute that followed a deadly mine explosion.

Here is the background.

In 1992, a bitter labor dispute at Yellowknife Giant Mine led to riots. One of the rioting miners, Roger Warren, was so distraught that he planted an explosive in one of the mines and detonated it via a trip wire. The explosion killed nine miners. Although Warren himself was quickly convicted and is now serving a life sentence in prison, his action set off a legal dispute between the widows of the miners killed and organizations that they alleged were indirectly responsible (and thus liable) for Warren’s actions.

The miners’ widows sued the Canadian Auto Workers, Royal Oak Mines, and the security firm that was supposed to protect the site, Pinkerton’s of Canada, as well as the Government of Canada’s Northwest Territories. In a lower court decision, the widows won a payout of $10.7 million in 2004. But the Supreme Court overturned the lower court’s decision, citing the fact that the parties named did not have sufficient control over the actions of Roger Warren and could not have anticipated that he would commit such a destructive act.

Peripherally at best. However, the case does raise some interesting points of law that have international implications.

For one, it re-raises the long running debate over the definition of indirect liability. If someone else causes significant damage (that merits, for instance, a North Carolina workers’ compensation claim), and a third party could theoretically be indirectly implicated in the primary agitators’ actions, what is correct legal remedy? Obviously, in the abstract, you simply can’t answer that question. In this case in Canada, the Supreme Court found that parties like Pinkerton’s and the Government of Northwest Territory could not be liable for the actions of the renegade angry miner. But you can certainly find analogous cases in Canada and in the United States, in which a third party can be held significantly liable for damages that a subordinate party causes.

For instance, let’s say a trucking company hires a driver and fails to vet the drivers’ safety record effectively. The driver then goes out and causes a car accident, which causes permanent spinal damage to a passenger in another vehicle. Although the truck driver who caused the accident was primarily responsible, the injured victim could probably make a great case against the truck company itself for providing the dangerous driver with a truck to drive in the first place.

If you or a family member has been involved in any kind of North Carolina workers’ compensation dispute, you may want to speak with a veteran, highly credentialed North Carolina workers’ compensation attorney ASAP to get a better understanding of your rights and strategic possibilities moving forward.

North Carolina workers’ compensation policy experts are keeping a close eye on a developing workers’ comp case out of Connecticut involving police officer Frank Chiafari, who shot and killed a chimpanzee who had ripped the face off of a local Stanford woman last year.

The attack on the woman, Charla Nash, provoked a firestorm of media coverage last February. Officer Chiafari had been called into deal with the emergency attack. He entered the melee and saw the woman’s mutilated face. The chimpanzee then attacked him. He drew his gun and shot it fatally. Traumatized by the incident, Officer Chiafari put in a workers’ compensation claim, which was denied in just five days.

The disgruntled officer recently testified before Connecticut lawmakers about how important it is to provide workers’ compensation to cover therapy for cases like his. The officer claimed that he suffered post traumatic stress disorder from the incident: he hallucinated that he saw women without faces, for instance.

At this point, it’s unclear. The chimpanzee shooting case was obviously quite one-of-a-kind. In other cases, in which an officer might be required to shoot a feral animal, for instance, would it be appropriate for the state to have to pay workers’ comp for counseling or therapy? Obviously, if an officer is forced to shoot and kill a human assailant, therapy benefits would no doubt be provided. But when you are dealing with an animal assailant? Should similar standards apply?

If the bill advocated by Officer Chiafari and others passes the Connecticut Legislature, other states may or may not follow suit and pass similar kinds of legislation. However, as we just mentioned, given the odd nature of this case, it seems unlikely that the bill will provoke a rapid state-by-state change in the law. Although when it comes to North Carolina workers’ compensation policy, you never know.

If you or a family member or a friend is having trouble securing workers’ comp benefits, or if you have questions about North Carolina workers’ compensation insurance coverage, please connect ASAP with a knowledgeable NC workers’ comp attorney.